Law prof: Casting couch sex, even sex without consent, isn't rape

•
Updated Mar 6, 2018 at 12:45 AM

Although much criticized, the statement by Benjamin Brafman, Harvey Weinstein's lawyer — that agreeing to have sex on the casting couch in order to get a position in a film does not constitute rape — is correct as a matter of law, says public interest law professor John Banzhaf, a champion of women's rights who has won over 100 sex discrimination cases.

Moreover, Banzhaf adds, many of the so-called #MeToo actions claimed to constitute sexual misconduct, objectionable as they may be, do not meet the legal definition of sexual harassment.

Even more astonishing, in most states, having sex with a woman against her will, even without her consent or after she has said "no" or "stop," likewise doesn't establish that a rape has occurred.

Brafman said: "If a woman decides that she needs to have sex with a Hollywood producer in order to advance her career and actually does it and finds the whole thing offensive, that's not rape . . . You made a conscious decision that you're willing to do something that is personally offensive in order to advance your career. Now, however offensive the whole saga may be on both of your parts, that's not a crime."

Agreeing to have sex in order to win a role in a movie, just like agreeing to obtain other benefits or advantages - e.g., a prom date, favorable publicity, or a prized introduction - is not rape since the consent to the sex was in fact given, even if the inducement may seem inappropriate to many, notes Banzhaf.

Even promising an actress a part in a movie in exchange for sex, and then not providing the part promised, don't constitute rape, any more than if a man falsely claims to be a famous movie producer or casting director in order to induce a woman to have sex commits the crime of rape.

The reason is simple. As law professors teach their students, fraud or misrepresentation in the inducement to have sex does not invalidate the consent which is fraudulently obtained.

Moreover, although some surveys have suggested that sex as a result of "verbal pressure" or "sexual coercion" constitutes rape, it doesn't. So "persistent attempts to have sexual contact with someone who has already refused," threatening to break off a relationship, implying that there is an obligation to provide sex, claiming "I need it, I'm a guy," etc. cannot by itself provide a basis for a rape prosecution.

Similarly, many #MeToo complaints of alleged sexual harassment — however boorish or inappropriate the conduct may appear — do not meet the definition of this term, and are therefore not illegal.

To meet this high standard, the conduct, in addition to being unwelcome and related to sex, must be so severe or pervasive enough to create an abusive or offensive working environment. For a single incident - such as many #MeToo complaints allege - to rise to this level, it must be quite severe.

Remember, cautions Banzhaf, that federal judge Susan Webber Wright held that, even if then-governor William Clinton had invited a female state employee to his hotel room, suddenly exposed his male organ, and then requested that she orally gratify him, it would not constitute sexual harassment.

Here's what the court ruled, citing numerous examples of very inappropriate sexual misconduct which was nevertheless held not to constitute sexual harassment or to otherwise be illegal.

"While the alleged incident in the hotel, if true, was certainly boorish and offensive, the Court has already found that the Governor's alleged conduct does not constitute sexual assault. This is thus not one of those exceptional cases in which a single incident of sexual harassment, such as an assault, was deemed sufficient to state a claim of hostile work environment sexual harassment. (supervisor called plaintiff a 'dumb bitch' and 'shoved her so hard that she fell backward and hit the floor, sustaining injuries . . .')."

The decision continued: "Considering the totality of the circumstances, it simply cannot be said that the conduct to which plaintiff was allegedly subjected was frequent, severe, or physically threatening, and the Court finds that defendants' actions as shown by the record do not constitute the kind of sustained and nontrivial conduct necessary for a claim of hostile work environment. (noting that single exposure to offensive videotape was not severe or pervasive enough to create hostile environment); (exposure to offensive behavior by supervisor on one instance does not satisfy 'severe or pervasive requirement); (five sexually-oriented incidents spread out over the course of 16 months not sufficiently severe or pervasive enough to create hostile work environment); ('relatively limited' instances of unwanted sexual advances, which included the supervisor placing his hand on plaintiff's leg above the knee several times, rubbing his hand along her upper thigh, kissing her several seconds, and 'lurching at her from behind some bushes,' did not create an objectively hostile work environment)." [legal citations omitted]

With all of this discussion and emphasis on women who have been subjected to inappropriate sexual misconduct - whether or not it was technically illegal - almost forgotten is the unconverted fact that in most states a man who has sex with a woman without her consent, or even after she has said "no" or "don't" or "stop," isn't guilty of rape since the crime requires the use of force or the threat of force. Thus the deliberate use of strong coercion, and threats short of those involving force, to obtain sex is legal.

As law professor Deborah Tuerkheimer, who strongly opposes rape, wrote in an article entitled "WE PREACH 'NO MEANS NO' FOR SEX, BUT THAT'S NOT WHAT THE LAW SAYS": "Over half the states have a 'use of force' requirement in order to prove rape. . . .The first-year law students I teach - smart, insightful, idealistic - have come of age hearing that 'no means no' when it comes to sex. They are almost always stunned to learn that, in most states, the legal definition of rape still requires the use of physical force. In other words, a verbal 'no' isn't always enough."

Banzhaf suggests that laws are designed to deter only the worst and most clearly wrongful conduct, sexual or otherwise. So, while it properly punishes sexual assaults, persistent overwhelming sexual misconduct in the workplace, and other extreme acts, it is not designed, as many feminists have agreed, to make every sexual proposal or boorish sexual behavior into a punishable legal offense.

Indeed, any attempt to criminalize all inappropriate comments, or other objectionable interactions between genders, could have adverse effects upon women. Men may well, as a matter of self defense, become reluctant to travel with female co-workers, mentor them, invite them for drinks or for lunch, to include them in work-related social gatherings, or even to hire or promote them, he suggests.

EDITOR’S NOTE: John Banzhaf, B.S.E.E., J.D., Sc.D., is a professor of public interest law at George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, and founder of Action on Smoking and Health (ASH), 2000 H Street, NW, Wash, DC 20052. He can be reached at (202) 994-7229 or jbanzhaf3ATgmail.com.